1. The standard of review for cases involving summary judgment is set forth and applied.

2. Where an unambiguous written contract controls an employment relationship, the
question of whether one party to the agreement is an employee or an independent
contractor is a question of law subject to unlimited review.

3. When a claim is asserted against a municipal employee for actions within the scope of
his or her employment, notice must be given pursuant to K.S.A. 2000 Supp. 75-6104.

4. The Kansas Tort Claims Act applies to claims against a hospital owned by a
municipality and the employees thereof who are acting within the scope of their
employment.

5. The Kansas Tort Claims Act does not apply to independent contractors working for a
municipal hospital.

6. The rules for determining whether someone is an employee or an independent
contractor are set forth and discussed.

7. The fact that a municipal hospital has no right to control or supervise a physician in
his or her professional care of any individual patient is not sufficient, in and of itself,
to create an independent contractor relationship between the physician and the
hospital.

8. The question of whether a physician is an employee or an independent contractor of a
hospital must be determined after consideration of the totality of the written
agreement and the intent of the parties.

LEWIS, J.: This lawsuit was filed by Ina Knorp against Steven E. Albert, D.O., to
recover damages caused when Albert allegedly misdiagnosed her condition as a diabetic
episode when she had, in fact, suffered a stroke. The trial court granted summary judgment
in favor of Albert, finding that Knorp had failed to give notice under K.S.A. 2000 Supp.
12-105b(d) to Albert's employer. Knorp appeals from the decision granting summary judgment
in favor of Albert.

The controlling issue on appeal is whether Albert was an employee of the Harper
Hospital District or an independent contractor. If he was an employee of the hospital, the
trial court was correct. If, on the other hand, Albert was an independent contractor, the trial
court's holding was erroneous. The question of Albert's negligence and the details of his
treatment of Knorp are irrelevant on appeal, and those facts will not be reviewed.

Our focus is on the procedural course this case has taken. That course is somewhat
complex and is of substantial importance in resolving the issues presented. Knorp filed two
lawsuits. The first action was filed in 1998 and will be referred to as the "1998 lawsuit." The
second action was filed in 1999 and is the action on appeal to this court. That action will be
referred to as the "1999 lawsuit."

The issues on appeal cannot be resolved without turning our attention first to the
1998 lawsuit. Among the allegations set forth in that action was the following:

"10. Harriet Fox, Phyllis Shirk, Tom Giggy, Ken Salters and Kenna Teal, as
directors and on behalf of Hospital District No. 5 of Harper County, Kansas, that entity is
the
employer of Dr. Steven E. Albert, and is responsible in response of superior
[sic] for all damages
caused by the fault of Dr. Steven E. Albert. In addition, these Defendants were negligent in
ensuring that Dr. Steven E. Albert in a timely fashion examined all patients admitted to the
Harper Hospital Medical Clinic on an emergency basis and that he was a competent
physician." (Emphasis added.)

Obviously, the 1998 action was premised on the basis that Albert was an employee of
the hospital. It named the directors of the hospital as defendants and sought recovery against
the hospital via the doctrine of respondeat superior or on the theory of negligent supervision.
The hospital, in responding to Knorp's allegations, alleged in its answer: "5. Answering the
allegations contained in paragraphs 5, 6, 7, 9 and 10, of plaintiff's Petition, the same are
expressly denied. These defendants expressly deny that they were negligent in any regard."

Albert filed a motion to dismiss the 1998 lawsuit on the ground that Knorp had failed
to give the required notice to the hospital under K.S.A. 2000 12-105b(d). That statute refers
to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., and requires that
prior to
filing suit against a municipality based on the negligence of one of its employees, written
notice must be given to the municipality at least 120 days prior to the filing of a lawsuit. The
parties appear to agree that the hospital was a municipality under K.S.A. 12-105a(a) and that
Knorp had failed to give it the notice required by 12-105b(d).

Knorp apparently realized the error of her ways and before the trial court had an
opportunity to act on the motion to dismiss, moved the court for an order dismissing the
1998 action without prejudice. This motion was granted, and Knorp filed the 1999 lawsuit
within the 6-month period required by K.S.A. 60-518.

In 1999, Knorp filed the current action. Unaccountably, Knorp again made no effort
to comply with 12-105b(d). Instead, she redrew her action, eliminated the directors of the
hospital as defendants, and named Albert in his individual capacity only, inferring that he was
an independent contractor of the hospital and not an employee. Albert again moved the
court for summary judgment, contending that he was, in fact, an employee of the hospital
and that no notice had been given under 12-105b(d). In response, Knorp argues that no
notice was necessary since Albert was an independent contractor. She further maintained
that Albert had either waived the right to raise the failure to give notice or was estopped to
raise that issue because of the position he had taken in the 1998 litigation.

The trial court found neither of Knorp's arguments persuasive and granted Albert's
motion for summary judgment. The propriety of granting summary judgment to Albert is
the subject of this appeal.

WAS ALBERT AN EMPLOYEE OF THE HOSPITAL OR AN

INDEPENDENT CONTRACTOR OF THAT ENTITY FOR

THE PURPOSES OF THE KANSAS TORT CLAIMS ACT?

Our standard of review for summary judgment in cases of this nature is well
established:

"The standard of review for a motion for summary judgment is well established.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.
K.S.A. 60-256(c). On appeal, we apply the same rules, and where we find reasonable minds
could differ as to the conclusions drawn from the evidence, summary judgment must be
denied. [Citation omitted.]" Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d
844 (2000).

The specific issue argued by Knorp is that the trial court erred in determining that
Albert's written contract with the hospital made him an employee rather than an
independent contractor. In this context, an appellate court may independently construe a
written agreement to determine its legal significance. Anderson v. Employers Mutual
Casualty
Ins. Co., 27 Kan. App. 2d 623, 629, 6 P.3d 918 (2000). There are at least two Kansas
Supreme
Court cases holding that the question of whether one is an employee or independent
contractor is generally a question of fact. See Mitzner v. State Dept. of SRS, 257
Kan. 258, 261,
891 P.2d 435 (1995); Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 (1991).
However, in this
case, an unambiguous written contract controls the employment relationship, and we
conclude the interpretation of that agreement is properly a matter of law subject to unlimited
review.

As we indicated earlier, no one seriously questions whether the hospital is a
municipality under K.S.A. 12-105a(a). That being the case, a tort claimant against a
municipality on a claim covered by the KTCA must give the municipality notice of the claim
and 120 days to either settle or deny the claim. On its face K.S.A. 2000 12-105b(d) only
applies to municipalities and says nothing about having application to the employees of the
municipalities. Despite this fact, we held in King v. Pimentel, 20 Kan. App. 2d 579,
589, 890
P.2d 1217 (1995), that 12-105b(d) requires notice to the municipality even when the lawsuit
only names municipal employees acting within the scope of their employment. The KTCA
applies
to both municipal entities and employees of municipal entities acting within the scope of
their employment. K.S.A. 2000 Supp. 75-6104.

Certain claims which are based on the rendering or failure to render professional
services by health care providers are excluded from coverage under the KTCA by K.S.A.
75-6115. However, there are five exceptions to this exclusion, and one of those exceptions is
applicable to this case and that is "a hospital owned by a municipality and the employees
thereof." K.S.A. 75-6115(a)(2). The KTCA has full applicability in the instant matter and
includes a "governmental entity or an employee acting within the scope of the employee's
employment."

Obviously an independent contractor is not an employee. Indeed, the KTCA
definition of employee excludes independent contractors. K.S.A. 2000 Supp. 75-6102a(d).
The result is, as pointed out earlier, if Albert is or was an independent contractor, then the
KTCA does not apply to him, and the trial court's decision was erroneous.

On the issue of Albert's status, the trial court held that he was an employee within the
definition of K.S.A. 2000 Supp. 75-6102a(d). In general, the test to be applied was set out by
the Supreme Court in Falls v. Scott, 249 Kan. at 64 as follows:

"An independent contractor is defined as one who, in exercising an independent
employment, contracts to do certain work according to his own methods, without being
subject to the control of his employer, except as to the results or product of his work. The
primary test used by the courts in determining whether the employer-employee relationship
exists is whether the employer has the right of control and supervision over the work of the
alleged employee, and the right to direct the manner in which the work is to be performed, as
well as the result which is to be accomplished. It is not the actual interference or exercise of
the control by the employer, but the existence of the right or authority to interfere or control,
which renders one a servant rather than an independent contractor. [Citation omitted.]"

In addition to the general rule, the Restatement (Second) of Agency § 220(2) sets
out
several relevant factors to be considered in deciding whether one is an employee or an
independent contractor:

"(a) the extent of control which, by the agreement, the master may exercise over
the
details of the work;

"(b) whether or not the one employed is engaged in a distinct occupation or
business;

"(c) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the employer or by a specialist without supervision;

"(d) the skill required in the particular occupation;

"(e) whether the employer or the workman supplies the instrumentalities, tools,
and
the place of work for the person doing the work;

"(f) the length of time for which the person is employed;

"(g) the method of payment, whether by the time or by the job;

"(h) whether or not the work is a part of the regular business of the employer;

"(i) whether or not the parties believe they are creating the relation of master and
servant; and

"(j) whether the principal is or is not in business."

The Kansas Supreme Court has indicated that the Restatement factors quoted above
should be considered in determining the issue in question. See Brillhart v. Scheier,
243 Kan.
591, 597, 758 P.2d 219 (1988).

In her argument that Albert was an independent contractor, Knorp seems to rely
almost exclusively on the following paragraph in the written employment agreement between
Albert and the hospital:

"5. Professional Standards. In the areas of diagnosis and treatment of
patients,
Physician's professional responsibility shall be complete and [the hospital] shall not direct,
supervise, or control Physician in his professional care of any individual patient. Physician
hereby
promises to engage in the practice of his profession on [the hospital's] behalf to the best of his
ability and in accordance with the generally accepted community standards of his profession
and to faithfully adhere to the standards as set by the licensing board of the State of Kansas and
the rules and regulations of [the hospital]." (Emphasis added.)

We hold that standing alone, the mere fact that the hospital had no right to control or
supervise Albert in his "professional care of any individual patient" was not sufficient to
create an independent contractor relationship.

First, it appears there may be some medical ethical provisions which require the
language in paragraph 5 to be in any physician's employment contract. This is suggested by
two federal circuit court decisions. See Quilico v. Kaplan, 749 F.2d 480, 483-84 (7th
Cir.
1984); Lurch v. United States, 719 F.2d 333, 337 (10th Cir. 1983). If, as we
conclude,
physicians are required to either put such a clause in their employment contract or are
required to in fact utilize their independent judgment regardless of what the contract says,
then it would follow that a physician could never be an employee but would always be an
independent contractor. We do not believe that such a position is supported by the law in
this state and certainly would be contrary to the intent of the parties. We conclude that
rather than relying on certain isolated provisions in the agreement, the status of a physician
should be determined by careful attention to the entirety of the contractual agreement and to
the intent of the parties.

"Although the hospital administrator averred that no hospital employee or staff
member had the right to control the medical techniques or judgment of the physicians in
command of the emergency room, this averment alone is insufficient to demonstrate
unequivocally that Dr. Feinfeld was an independent contractor. Other affidavit averments
indicate that this doctor came within the category of being a servant of the hospital as he was
paid an hourly wage and his schedule was arranged by the hospital." (Emphasis added.)

We prefer to construe the employment agreement in this case by the totality of all of
its provisions and to give considerable weight to the intent of the parties. We also believe
that a modicum of common sense should be a factor in reaching a decision.

While the agreement does not give the hospital control over the details of the
treatment of patients, it gives Albert precious little control over any other area of his life as a
physician. For instance, the agreement requires Albert to provide services to those patients
"who present themselves or who are presented to [the hospital] for treatment." This indicates
that Albert was not entitled to refuse service to anyone. He was required to serve those
patients who came into the hospital in which he worked. It appears to us that a physician
working as an independent contractor would have the authority to decide whom he or she
would treat and whom he or she would not treat.

If one analyzes the agreement with regard to the factors stated in the Restatement of
Agency, certainly more of those factors point to the existence of an employer/employee
relationship than point to an independent contractor relationship. In particular, we cite the
following:

(a) Control over details. Although Albert was to have independence with
respect to
the details of the treatment of his patient, the hospital had the right to exercise enough
control over him to see that his treatment fell within the standards of the profession and
standards as set forth in the hospital rules and regulations. The times he was required to be at
the hospital were set by the hospital and not by Albert.

(b) Who supplies the instrumentalities, tools, and place of work. The
employment
contract required the hospital to provide "such facilities, equipment, and supplies as it seems
necessary for Physician's performance of professional duties." The hospital was responsible
for purchasing malpractice insurance and gave Albert an allowance for professional meetings,
professional dues, and license dues. These were items which, if Albert were an independent
contractor, he would be paying for himself.

(c) Length of contract. The first agreement between Albert and the hospital
was from
April 1995 until April 1996. The agreement in effect at the time Knorp's cause of action arose
was in effect from July 1996 until June 1998. Albert was prohibited under the employment
agreement from working for anyone else during the period of time he was employed by the
hospital.

(d) Method of payment. The employment agreement required the hospital to
pay
Albert a salary based upon his time. He was compensated in the same manner and in the
same fashion as any other employee.

(e) Intent of the parties. As we read the agreement, the parties clearly
intended that
Albert should be considered an employee of the hospital. The words "independent
contractor" do not appear in the employment agreement. If the hospital had intended to
create an independent contractor relationship so as to avoid vicarious liability, we suspect the
agreement would have expressly said so. There is nothing in the agreement to hint that the
parties intended an independent contractor relationship.

We conclude that when viewed in its entirety, the agreement reveals an intent by the
parties that Albert be considered an employee of the hospital. It also contains a sufficient
number of provisions to overcome the fact that the hospital was not able to control Albert in
his care of the patients. We hold the trial court did not err in concluding that Albert was an
employee of the hospital and that notice was required to be given under the Kansas Tort
Claims Act.

JUDICIAL ESTOPPEL

In order to save her action, Knorp attempts to make an equitable estoppel argument
which we consider not only to be disingenuous but inconsistent with the manner in which
Knorp has proceeded in this litigation. Knorp suggests that Albert is either estopped from
arguing or has waived the right to argue that he is an employee of the hospital. This
argument is premised on the fact that in the 1998 lawsuit, Albert and the hospital denied that
he was an employee, and it is the position of Knorp that having denied it in the 1998 lawsuit,
Albert should not be permitted to claim it in the 1999 lawsuit.

We disagree.

The first thought that comes to mind is that Knorp has totally changed her approach
from the 1998 lawsuit to the 1999 lawsuit. In 1998, she claimed that Albert was an employee.
In 1999, she inferred that he was an independent contractor. If Knorp was not estopped from
changing her theory of recovery, then we cannot imagine how Albert could be estopped from
changing his theory of defense.

A party can assert judicial estoppel when four elements are satisfied: (1) a position
taken must contradict a declaration in a prior judicial action; (2) the two actions must involve
the same parties; (3) the party asserting the theory must have changed its position; and (4) the
changed position must have been in reliance on the prior statement. See Griffin v. Dodge
City
Cooperative Exchange, 23 Kan. App. 2d 139, 151, 927 P.2d 958 (1996), rev.
denied 261 Kan.
1084 (1997).

One reason why judicial estoppel is not appropriate is that the same parties are not
involved in this action as were involved in the 1998 action. The hospital directors were
involved in the 1998 lawsuit but not in the 1999 lawsuit. The law would not hold Albert to
pleadings made largely at the direction of the directors of the hospital in the 1998 lawsuit.

The reasons stated above, among others, compel us to hold that Albert was not
estopped to take the position that he took in the 1999 lawsuit.

The trial court correctly concluded that neither judicial estoppel nor waiver was
applicable in this case.

We affirm the trial court's decision granting summary judgment in favor of Albert.